People v. Dixon

• Decision Date: 24 February 1984
• Docket Number: No. 81-700,81-700
• Citation: 460 N.E.2d 858,122 Ill.App.3d 141,77 Ill.Dec. 554
• Parties: , 77 Ill.Dec. 554 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny DIXON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 858

460 N.E.2d 858

122 Ill.App.3d 141, 77 Ill.Dec. 554

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny DIXON, Defendant-Appellant.

No. 81-700.

Appellate Court of Illinois,

First District, Fifth Division.

Feb. 24, 1984.

[122 Ill.App.3d 143] [77 Ill.Dec. 555] George P. Lynch, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Cook County, Chicago (Michael E. Shabat, Lawrence R. Stasica and Timothy J. Joyce, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

MEJDA, Presiding Justice:

Defendant Johnny Dixon appeals from his conviction, following a bench trial, for the offenses of murder, burglary and home invasion. Sentence was imposed only for murder. He raises four issues on appeal: (1) whether the court erred in failing to obtain a waiver of jury for the sentencing hearing; (2) whether defendant was improperly convicted for the offenses of burglary and home invasion; (3) whether defendant was illegally sentenced; and (4) whether defendant was proved guilty beyond a reasonable doubt of the offenses of murder, burglary and home invasion. We affirm and remand for sentencing as to burglary and home invasion.

The following testimony was presented at trial.

Robert Thomas testified that on February 4, 1979, he was in the living room of a residence located at 5532 South La Salle Street with his niece, Lauretta Hullett, Sandra Thomas, and the owner of the property, Joan Hullett. About 10 p.m. there was a knock at the front door. He and Lauretta looked through the window in the door and saw a man standing on the porch. The porch was illuminated by two nearby streetlights and by light from inside the house. Neither he nor Lauretta recognized the man. The man wore wire frame glasses, a dark blue knit cap and a pea coat and carried a police radio. He announced that he was from the "State's Attorney's police" and displayed a black wallet containing a star-shaped badge and identification card. Robert viewed the man for about 30 seconds, then with Joan Hullett's permission, opened the door. The man on the porch raised a handgun, placed one foot inside the door and fired the gun. Robert succeeded in closing the door after a brief struggle. Lauretta was taken to the hospital and pronounced dead. Robert identified the defendant in court as the man who had been on the porch.

Robert further testified that on February 10, 1979, he viewed photographs at the police station. In court he selected a photograph Robert stated that the radio carried by the man was a hand-held scanner type with a flexible antenna. Before opening the front door he heard transmissions emitting from the radio of the same type as would be heard from a police scanner. The glasses worn by the man on the porch had grayish frames. In court Thomas identified glasses, a badge, a knit hat and a radio as similar to those possessed by the man who shot Lauretta.

[77 Ill.Dec. 556] of the defendant and stated that it was the same photograph he had chosen on February 10 as depicting the man who shot Lauretta. On November 27, 1979, Thomas viewed a line-up and identified the defendant as the man who shot Lauretta.

Sandra Thomas next testified that she was in the living room on the evening of February 4, 1979. She heard a man on the front porch say that he was from the "State's Attorney's police" and heard a sound like police radio transmissions. When Robert opened the door she saw a man wearing a hat and silver wire-rimmed glasses holding a handgun. Sandra viewed the man through the open door for two to three seconds as he stepped into the house with one foot and fired the gun. On November 27, 1979, Sandra viewed a lineup and identified defendant as the man who shot Lauretta. In court she identified a hat and a pair of glasses as similar to those worn by the man on the porch and identified defendant as the man who fired the gun.

Joan Hullett concurred in the testimony of Robert and Sandra regarding the events of the evening of February 4, 1979. She did not see the man who fired the shot. She also testified that on January 19, 1979, two men came into her house at 5532 South La Salle and shot her husband, Joseph Hullett; he died the next day. Her daughter Lauretta witnessed the killing and was scheduled to testify on February 6, 1979, against the man she had identified in connection with that killing.

John Byrne, a Chicago police officer, testified that on the morning of February 5, 1979, Robert Thomas viewed two photograph displays, each consisting of five or six pictures. Neither display contained pictures of either the defendant or Roy Dixon, his brother. Robert identified no one in either display in connection with the killing of Lauretta Hullett. On February 10, 1979, Robert was shown a third display which contained pictures of both the defendant and Roy Dixon. From this display he selected a photograph of the defendant and identified him as the person who had shot Lauretta Hullett.

David O'Callaghan, also a police officer, testified that a pair of glasses, a black wallet containing a star-shaped badge, and a Motorola "beeper" were found in a hall closet at 5147 South Aberdeen and seized upon execution of a search warrant. A knit cap found in an upstairs bedroom was also seized.

The defense presented the following witnesses. Thomas Harris, the owner and manager of the restaurant where defendant was employed on February 4, 1979, testified that, to the best of his recollection, defendant worked his regular shift from 10 p.m. to 7 a.m. on that date. The payroll records indicated that the defendant had not taken a day off during the pay period which included February 4, 1979. The records, however, showed only the total number of hours worked in a given week and did not show the number of hours worked each day. The total number of hours worked during the week in question was three hours less than it would have been if defendant had worked six 8-hour shifts as was the norm.

The defendant testified on his own behalf. He stated that he worked at the restaurant from 10 p.m. on February 4, 1979, until 7 the next morning, and that it takes approximately 1 1/2 hours to travel from his residence at 5147 South Aberdeen to the restaurant. He expressly denied going to the Hullett home on the evening in question, identifying himself as a State's Attorney's police officer, and shooting anyone. He stated that he kept all of his belongings in an upstairs bedroom of the Aberdeen residence and denied ever having The trial judge found defendant guilty of the murder of Lauretta Hullett, of burglary, and of home invasion. Defendant was sentenced to life imprisonment for murder. No sentence was imposed on the burglary or home invasion convictions.

[77 Ill.Dec. 557] seen the beeper radio, the wallet containing the star-shaped badge or the glasses recovered from 5147 South Aberdeen. He admitted owning several knit caps of the type recovered from that address.

OPINION

The first issue raised is whether reversible error resulted from the court's failure to obtain defendant's jury waiver for his sentencing hearing. Defendant contends that such failure deprived him of his constitutional right to a jury trial and asserts that he was, therefore, illegally sentenced. The State maintains that defendant suffered no prejudice as a result of the court's omission and argues that the error, if any, was harmless.

Initially, it is important to note that no issue is raised regarding defendant's waiver of his right to trial by jury. Defendant complains only that he did not waive his right to jury consideration in the separate sentencing hearing held to determine whether the death penalty should be imposed against him. The cases cited by defendant deal exclusively with waiver of the right to trial by jury and are, therefore, inapposite.

The statute governing the imposition of the death penalty provides that, where requested by the State, the court shall conduct a separate sentencing proceeding (1) to determine the existence of circumstances under which imposition of a death sentence would be proper, and (2) to consider any factors in aggravation and in mitigation. The proceeding shall be conducted before a jury or, if the defendant waives a jury, before the court alone. (Ill.Rev.Stat.1981, ch. 38, par. 9-1(d)(3).) If the hearing is before a jury, the jury must first determine whether, on the circumstances before it, sufficient aggravating factors exist to warrant imposition of the death penalty. If this finding is negative then the court shall sentence the defendant to a term of imprisonment. If the jury finds that the death sentence may be imposed, it must then consider factors in aggravation and in mitigation. If the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall impose such sentence. Otherwise, the court shall sentence the defendant to a term of imprisonment. (Ill.Rev.Stat.1981, ch. 38, par. 9-1(g).) If the hearing is before the court alone, the court completes the same analysis in determining the sentence to be imposed.

In the instant case if a jury had been impaneled, the result would have been a sentence of death or a sentence to a term of imprisonment. If the jury found sufficient aggravating factors to warrant imposition of the death penalty and insufficient factors to preclude imposition, the trial judge would have been required to sentence defendant to death. If the jury found insufficient aggravating factors to warrant imposition of the death penalty or mitigating factors sufficient to preclude it, in either such event, the trial judge would have been required to sentence defendant to a term of imprisonment. The latter determination was made in the instant case, albeit by the trial court alone, clearly with the result most favorable for defendant. Thus, given that the record evidences sufficient aggravating factors to warrant...